ESSAY; Beyond the Blame: A No-Fault Approach to Malpractice

The room is filled with physicians from all over the country. It was silent until a few moments ago, when the first sad gasp was heard from the far corner. Now tearful faces fill the room.

I've asked each doctor here to write a letter to a patient about something unresolved. The doctors will never mail these letters; instead, they have been instructed to write as openly and truthfully as they can.

Now, Ellen, an obstetrician is reading her letter aloud. It is about something that happened 15 years ago, when she was practicing independently for the first time. She performed amniocentesis, inserting a needle into her pregnant patient's amniotic fluid to check for genetic disease, and induced a miscarriage.

Ellen was not sued, and she has never spoken about it, until now.

As the afternoon continues, most of the letters are about mistakes, errors these physicians made that continue to haunt them, years later.

As a clinical psychologist, I have done this exercise with more than 300 doctors, assured of anonymity, in physician wellness seminars. And as a former cancer patient who spent five years struggling with chemotherapy, radiation and operations, I am aware that patients often split doctors into two groups, the good and the bad.

The truth, of course, is more complex. Most physicians, even those whose skills are excellent, make terrible mistakes at some point in their careers.

Most doctors are genuinely committed to their work and carry their mistakes with them, secretly, for the rest of their lives. Unfortunately, a vast majority do not tell their patients when they have made mistakes that harmed them.

It is not surprising that so many doctors who are successful and usually ethical will cover up their mistakes. And it is not surprising that many doctors, as well as patients, find the current system of accountability unworkable, especially in medical malpractice cases.

Fear of malpractice is rampant. Research studying physicians' responses to being named in malpractice suits has revealed that the experience is traumatizing for most and that 20 percent of doctors who are defendants describe the experience as the most traumatizing of their lives.

Part of the trauma is financial; doctors are personally responsible for damages beyond the amount that malpractice insurance will pay.

The trauma is also psychological, as most physicians derive much of their self-definition from their knowledge that they are good doctors. In suits, it is to the plaintiff's advantage to characterize the doctor as uncaring, negligent and unskilled. Physicians who have been trained to expect perfection from themselves usually find this battering.

This may explain why so many mistakes go unreported. In 1999, Dr. David Studdert, a Harvard researcher, published a paper in which doctors and nurses reviewed 14,700 medical charts from Utah and Colorado for evidence of negligent care.

Then Dr. Studdert and his colleagues tracked how often bad medical care resulted in malpractice suits. ''Of the patients who suffered negligent injury in our study sample, 97 percent did not sue,'' they wrote.

The authors also concluded that roughly 5,000 uncompensated injuries resulted from medical negligence in Utah and Colorado in 1992. Dr. Studdert's results were similar to those reported in the 1970's and 80's in California and New York.

In 2000, the Institute of Medicine published a report suggesting that a majority of doctors' mistakes were products of flawed systems that did not provide the checks and balances necessary to prevent errors by physicians. Many are preventable.

In the last decade, malpractice insurance costs have skyrocketed, leaving many doctors unable or unwilling to pay for coverage in their chosen specialties.

This year in an effort to address the problem, Representative James C. Greenwood, Republican of Pennsylvania, and Senator John Ensign, Republican of Nevada, introduced legislation to cap financial awards to patients in malpractice cases.

An error has occurred. Please try again later.

You are already subscribed to this email.

The legislation was voted down this summer. The flaw with this plan was that even if it worked and liability insurance prices dropped, secrecy in medicine would still not be addressed.

A better plan would call for motivating physicians to report their own mistakes by offering them no-fault judgments in exchange for their disclosures. This will work as a ''carrot'' only if there is also a ''stick'' waiting for those doctors who chose to cover up their errors.

In such a system, instead of physicians' paying for malpractice insurance, the doctors and patients would pay into local injured-patient compensation funds. In this way, the burden of reimbursing injured patients would be shared, and everyone would enjoy the benefits of better care resulting from changes in the way medicine is practiced.

Physicians making serious mistakes would voluntarily report them to local commissions.

The commissions, which would consist of physicians and patients, would strive to compensate the injured patients according to guidelines established to ensure that reimbursements were uniform.

In exchange for disclosing mistakes, physicians would be granted no-fault judgments and avoid liability. If the commission agrees with the physician that harm has occurred, the patient will be compensated according to guidelines designed to ensure uniform compensation.

The compensation would be more modest than the occasional enormous judgments in the courts today, but many more patients would be compensated, because the reporting onus would be on the doctor (who is in a better position to perceive the mistake), rather than the patient.

Separate boards would take over the role of the state boards of medicine and investigate doctors and nurses who did not come forward. The boards would investigate medical errors and substandard practices reported by patients by studying incident reports and patient complaints to discover mistakes and by auditing charts at random.

Doctors who were justifiably unaware of mistakes would have an opportunity to present their perspectives. Those who appeared to have ignored or covered up their errors would have no protection and could lose the right to practice medicine.

In this system, many doctors who showed patterns of substandard practice would eventually be caught, while doctors who were honestly doing their best would have a way to apologize and promote healing by telling the truth about their involvement in the mistake.

As long as the harm was a result of medical care (and not a criminal act) and the doctor showed no pattern of neglect or abuse, then freedom from payment would be granted for complete disclosure.

Clearly, the introduction of no-fault malpractice would require a drastic shift among doctors trained under the prevailing philosophy. Learning to trust a system that does not penalize honest mistakes will take time.

Putting such a system in place will also be challenging, assuming that all physicians will have to serve some time on local medical compensation boards and that some cases will have to be referred to other jurisdictions so that well-trained peers can be identified.

Patients may wince at the idea of not holding doctors personally responsible for their mistakes. Most patients are unaware of how little protection they now have.

A brief survey of patient advocacy Web sites reveals that most patients oppose any limits on financial awards, erroneously assuming that the current system is working to protect them.

As someone who has lived on both sides of the sick bed, I know that patients and doctors want the same thing: a system that builds trust, helps each group learn from mistakes and compensates those who are injured.

The current system meets none of these challenges, but a system combining no-fault judgments with aggressive hunting for those covering up mistakes, will.